United States: Seven (Sometimes Surprising) Facts About Mediation

Last Updated: April 6 2011

If you have ever been part of a lawsuit, you are probably aware that somewhere in the range of 95% of employment-related lawsuits are settled, dismissed, or otherwise resolved before trial. While some cases are resolved through direct negotiation between the lawyers, or through motions filed with the court, a significant number are resolved through mediation.

Mediation is, essentially, a formalized negotiation process with the assistance of an experienced lawyer, retired judge, or (in court-ordered mediations) a magistrate judge. The parties to a dispute hire the mediator (or, sometimes, are provided with a mediator by the court), and then the attorneys and one or more client representatives from each side meet with the mediator to try to work toward a resolution of the dispute. Many courts require parties to attempt to resolve their disputes through mediation before proceeding to trial.

Clients who have never participated in a mediation are sometimes surprised by the process – and occasionally worried about mediation before they understand what it will involve. Here are seven facts that are most frequently surprising to clients when we start preparing for mediation:

1. The mediator can't force you (or the other side) to do anything. A mediator's job is to help the parties resolve their dispute. Most mediators will point out the weaknesses in each side's case, and try to get each side to move toward the other side's position. Some mediators will give an opinion of what the case is "worth," but that evaluation is not binding or enforceable in any way – although it can be useful to get a neutral third party's view of the case.

2. You might not ever see the opposing party. Depending on the mediator and on the particular facts of the case, you may not even see the other party to the dispute during the mediation. Some mediators conduct a joint session for both sides at the outset, but many others – especially if there are emotional issues involved – do not.

3. There is a lot of waiting involved in a mediation. For most (or sometimes all) of the mediation, you and your attorney will be in one conference room, while the opposing party and the other attorney will be in another conference room. The mediator will spend time in each of those rooms, talking with the parties and their lawyers, listening to their positions, asking questions, and so on. Obviously, when the mediator is talking to the other side in a separate room, he or she is not talking to you. While you will undoubtedly have discussions with your attorney during these breaks, and may need to research facts, contact others at your company, or otherwise work toward resolving the case – you will likely have a fair bit of down time.

4. Most cases settle in the last hour of the scheduled mediation, or later. It is a near-universal rule that negotiations expand to fill the time allotted to them. If you are scheduled for a half day mediation, most often the parties will settle – if at all – just before the end of your half day; if a full day is scheduled, don't be surprised if the case settles at the very end of the day, or if everyone needs to stay late because negotiations are finally getting somewhere.

5. Sometimes settlement isn't the only purpose. While parties almost always go into mediation with the goal of resolving the dispute, that is not always the only goal, and a mediation that does not resolve the case is not necessarily unsuccessful. Sometimes mediation serves other purposes: it might allow the parties to agree on steps to be taken before further discussions will be productive; it might give the parties more information about their opponent's position; it might allow the parties to narrow the dispute, by eliminating some claims or some parties; or it might – although less often – confirm that the parties' positions are too far apart and too hardened to make further discussions useful.

6. Even if a mediation is unsuccessful, there may be further negotiations. Most mediators will follow up at some point – some sooner than others, some more diligently than others – on cases that do not settle. And your attorney may contact the other side or the mediator to try to continue discussions, or to find out what made negotiations break down (if it wasn't obvious). Even if the parties leave a mediation without any plan for further discussions, that doesn't mean that negotiations are over forever.

7. Every mediation is different. Your role will vary, depending on the facts of the case, the claims being brought, the personalities of the parties, attorneys, and mediator, and numerous other factors. At a minimum, your attorney needs you to show that you (and your company) are taking the case seriously, and that you are an honest, trustworthy businessperson. Your attorney may also need you to provide information and answer questions from the mediator – or your attorney may need you to sit quietly while he or she discusses the case with the mediator. Follow the lead of your attorney – but don't hesitate to ask in advance if you aren't sure of your role.

Mediation gives you an opportunity to participate directly in efforts to resolve your lawsuit. Mediation can also put you in an unfamiliar, and potentially uncomfortable, situation. With some advance planning, you will be better prepared for the process and its ups and downs.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Berman Fink Van Horn P.C.
Moritt, Hock & Hamroff LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Berman Fink Van Horn P.C.
Moritt, Hock & Hamroff LLP
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions